Opinion
No. 6-005 / 04-0798
Filed February 1, 2006
Appeal from the Iowa District Court for Johnson County, Douglas S. Russell, Judge.
Applicant-appellant, Daniel Lopatka, appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
Daniel Lopatka, Iowa City, appellant, pro se.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, J. Patrick White, County Attorney, and Carmen Couden, Legal Intern, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Applicant-appellant, Daniel Lopatka, appeals from the district court's denial of his application for postconviction relief. He contends the court erred in dismissing his application because he was denied his Sixth Amendment right to confront the witnesses against him in the trial on his criminal charge. On de novo review, we affirm.
The applicant was arrested for operating a motor vehicle while intoxicated. In its minutes of testimony, the State listed the arresting officer and three criminalists as witnesses. At the final pretrial conference, three days before trial, the applicant's request that defense counsel be excused and that he be allowed to proceed pro se was granted. At trial, the State offered only the testimony of the arresting officer and various exhibits, including the results of the breath test. The defendant presented no evidence.
At the sentencing hearing, the court ruled on the applicant's motion in arrest of judgment that alleged, in part, a violation of his Sixth Amendment right to confront the witnesses against him because the State did not call three of the witnesses listed in the minutes of testimony. The court found "that the Defendant's claims concerning his constitutional rights and the procedural matters in this case are in fact frivolous and do not constitute grounds for setting aside the jury's verdict in this matter."
The applicant subsequently filed the application for postconviction relief that led to this appeal. In it, he again alleged a violation of his constitutional right to confront the witnesses against him. The district court denied the application.
Generally, we review a postconviction proceeding for errors at law. Harpster v. State, 569 N.W.2d 594, 596 (Iowa 1997). Here, however, a constitutional defect is implicated. We review claimed violations of the confrontation clause de novo. State v. Liggins, 557 N.W.2d 263, 268 (Iowa 1996).
"The primary purpose of the confrontation clause is to secure for the opponent the opportunity of cross-examination." State v. Froning, 328 N.W.2d 333, 336 (Iowa 1982) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974)). The applicant had the opportunity to cross examine the State's witness. He also had "the right to compel the presence and present the testimony of witnesses," including those listed by the State as witnesses. Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 811 (1988). The applicant did not depose any witnesses or subpoena any for trial. Iowa Code section 691.2 (1997) provides the means for a defendant to request the testimony of criminalists at trial by notifying the county attorney at least ten days before trial. The applicant did not request the testimony of the criminalists listed as witnesses by the State. Section 691.2 also provides for compelling such testimony by subpoena.
We find the applicant was given the opportunity to confront the witness the State produced to testify against him. The applicant does not contend he has a right to confront those persons who are not called as witnesses against him. He had the right to force by subpoena the three criminalists to become witnesses against him or to request their testimony pursuant to statute, but did nothing to make the criminalists witnesses. We find no violation of his Sixth Amendment right to confront the witnesses against him. We conclude the district court did not err in denying his application for postconviction relief.